Mukasey’s mistake

Former federal judge Michael Mukasey will certainly be confirmed as U.S. attorney general, but the Senate Judiciary Committee’s 11-8 approval of this otherwise qualified candidate was closer than it should have been.

Mukasey’s misstep was to appear to denounce torture without exception on the first day of his hearings and then come back the next and appear to waffle on a particular form of brutal interrogation — waterboarding — that the White House finds acceptable but many others consider to clearly be torture.

Mukasey said he found the practice repugnant but refused, despite prodding from a majority of the committee, to go beyond that. It was embarrassing to the United States and evidence of how far our claims to moral leadership have fallen that the nominee to the top legal office in the land found himself in that position.

If he flatly declared that waterboarding was torture, it could be construed as an admission of war crimes and made U.S. agents who might have engaged in the technique overseas subject to prosecution by foreign courts. And, unless Mukasey wanted to seem a total hypocrite, he would be committed to prosecuting U.S. interrogators who engaged in waterboarding under the belief that the White House and its infamous “torture memos” had cleared them to do so.

Mukasey may yet face that dilemma, but at least it won’t be from a prejudicial position. And he takes office clearly understanding that the lawmakers to whom he must answer consider waterboarding to be torture and thus illegal and unacceptable.